{"id":468,"date":"2017-08-23T02:06:45","date_gmt":"2017-08-23T02:06:45","guid":{"rendered":"https:\/\/ajborrassolaw.com\/briefs\/?p=468"},"modified":"2017-08-25T02:54:28","modified_gmt":"2017-08-25T02:54:28","slug":"application-of-forum-non-conveniens-to-foreign-forum-selection-clauses","status":"publish","type":"post","link":"https:\/\/ajborrassolaw.com\/briefs\/application-of-forum-non-conveniens-to-foreign-forum-selection-clauses\/","title":{"rendered":"Application of Forum Non Conveniens to Foreign Forum Selection Clauses"},"content":{"rendered":"

Does application of the federal doctrine of\u00a0forum non conveniens\u00a0<\/em>vary according to whether a forum selection clause calls for a state, federal or foreign forum?<\/p>\n

This precise issue was addressed recently in\u00a0AAP Implantate AG v. MI Global Grp. USA LLC<\/em>, 2017 U.S. Dist. LEXIS 116167, Case No. 1:17-cv-21888-UU (S.D. Fla. July 24, 2017).\u00a0There, the defendant in an international contract dispute arising under the United Nations Convention on the International Sale of Goods (\u201cCISG\u201d) filed a motion to dismiss a case filed in the U.S. District Court for the Southern District of Florida based on the doctrine of\u00a0forum non conveniens.\u00a0<\/em><\/p>\n

The underlying dispute alleged the breach of an international distribution agreement in which the plaintiff German corporation appointed the defendant Florida company to act as its exclusive distributor in Venezuela.\u00a0The contract called for application of German law to any ensuing dispute and further provided \u201cPlace of jurisdiction is Berlin, Germany.\u201d<\/p>\n

The German corporation filed suit to enforce the contract in the southern district of Florida.\u00a0The Florida defendant then moved to dismiss the suit based on the German forum selection clause.\u00a0The defendant argued, in part, that the clause was mandatory, and, therefore subject to dismissal pursuant to 28 U.S.C. \u00a71404 (\u201cChange of Venue\u201d).\u00a0The plaintiff responded that the clause was permissive and factors of convenience, among others, favored litigation in Florida.<\/p>\n

The court first determined that 28 U.S.C. \u00a71404(a) did not apply. The court relied on a 2013 U.S. Supreme Court decision holding that Section 1404 only applies to transfers between federal district courts. When transfer to a state or foreign forum is sought and \u201cparticularly when a foreign forum selection clause is present,\u201d the analysis turns on application of the traditional doctrine of\u00a0forum non conveniens.<\/em>\u00a0Because the Defendant sought transfer to a\u00a0foreign<\/em>\u00a0forum pursuant to the contract forum selection clause, the court declined to consider Section 1404.<\/p>\n

Rather than addressing whether the clause was mandatory or permissive along with public and private factors of 28 U.S.C. \u00a71404, the Court instead addressed a different issue \u2013 whether the forum selection clause itself was valid and enforceable.\u00a0Given the presumptive validity of such clauses, the burden to defeat one is rather high.\u00a0Essentially, \u201cforum selection clauses in international contracts will be deemed unenforceable \u2018only when: (1) their formation was induced by fraud or overreaching; (2) the plaintiff effectively would be deprived of its day in court of the inconvenience or unfairness of the chosen forum; (3) the fundamental unfairness of the chosen law would deprive the plaintiff of a remedy; or (4) enforcement of such provisions would contravene a strong public policy.\u2019” (citation omitted<\/em>).<\/p>\n

The Court held the contract, though ambiguous, was enforceable, construed that ambiguity against the plaintiff drafter, and dismissed the case in favor of proceedings in Germany.<\/em><\/p>\n

A few years ago, I dealt with the other issue \u2013 that is,\u00a0forum non conveniens\u00a0<\/em>as it relates to 28 U.S.C. \u00a71404(a) and opposed an effort to transfer a Florida district court case to another federal district court. A thorough analysis of those issues and the distinctions between mandatory and permissive choice of law clauses is available\u00a0here<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Does application of the federal doctrine of forum non conveniens vary according to whether a forum selection clause calls…<\/p>\n","protected":false},"author":1,"featured_media":469,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[],"class_list":["post-468","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-posts"],"_links":{"self":[{"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/posts\/468","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/comments?post=468"}],"version-history":[{"count":2,"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/posts\/468\/revisions"}],"predecessor-version":[{"id":471,"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/posts\/468\/revisions\/471"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/media\/469"}],"wp:attachment":[{"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/media?parent=468"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/categories?post=468"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ajborrassolaw.com\/briefs\/wp-json\/wp\/v2\/tags?post=468"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}